Fred Masambaka v Babs Security Services [2014] KEELRC 1181 (KLR)

Industrial Court of Kenya at Nairobi

22 July 2014

LNLinnet Ndolo

835 words in judgment

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The bottom line

A Kenyan security guard won his unpaid leave claim because his employer had no written contract or records to dispute it.

What this practically means

Executive summary

The Claimant, a security guard, claimed terminal dues from the Respondent, alleging he worked from 2nd February 2002 until 27th October 2010 when he resigned on medical and age grounds, and that the Respondent declined to accept his resignation or pay his dues. He sought eight years' leave pay (Kshs. 33,600), unremitted NSSF dues (Kshs. 28,200), unremitted NHIF dues (Kshs. 28,800) and severance pay for eight years (Kshs. 24,000). The Respondent, in its statement of defence dated 10th October 2011, alleged the Claimant was discharged and paid all his dues, but did not appear at the hearing on 19th May 2014 and led no evidence. The Court framed a single issue: whether the Claimant was paid his dues on leaving employment. Relying on Sections 9 and 10(7) of the Employment Act, 2007, Judge Linnet Ndolo held that where the employer fails to document terms or produce a written contract, the burden of proving or disproving an alleged term rests on the employer. Finding only a general, unsupported denial, the Court accepted the Claimant's account of continuous employment and unpaid leave, and allowed the leave pay claim. However, applying the Court's earlier decision in Beatrice Wayeko v Cellulant Kenya Limited, it dismissed the claims for unremitted NSSF and NHIF dues as these are payable to the statutory bodies, the proper prayer being service pay under Section 35(5). Severance pay was also dismissed as the Claimant was not declared redundant. The Court awarded the Claimant Kshs. 33,600 in leave pay, with costs and interest at court rates from the date of the award until payment in full.

Key legal issues

Whether the Claimant was paid his terminal dues on leaving employment

Holding

Claimant was in continuous employment from 2nd February 2002 to 27th October 2010 and was not paid leave pay; awarded Kshs. 33,600

Reasoning

The employer failed to issue a written contract as required by Section 9 of the Employment Act, shifting the evidentiary burden under Section 10(7). The Respondent offered only a general denial without evidence, so the Court accepted the Claimant's testimony on the employment period, the unpaid leave, and the withheld terminal dues.

p. 2

Whether unremitted NSSF and NHIF dues are recoverable from the employer by the employee

Holding

No; such dues are payable to the statutory bodies, and the proper claim is for service pay under Section 35(5)

Reasoning

Following its own prior decision in Beatrice Wayeko v Cellulant Kenya Limited, the Court held that statutory deductions belong to the statutory bodies and dismissed the head of claim as misconceived.

p. 2

Whether the Claimant was entitled to severance pay

Holding

No, as he was not declared redundant

Reasoning

Severance pay attaches to redundancy; the Claimant resigned on medical and age grounds, so no basis for severance pay arose.

p. 2

Legal principles established

Where an employer fails to produce a written contract of employment, the burden of proving or disproving an alleged term of employment rests with the employer.
An employer is obligated to acknowledge and respond to a resignation notice from an employee.
NSSF and NHIF dues are payable to the respective statutory bodies and not to claimants; the proper prayer for non-remittance of NSSF dues is service pay under Section 35(5) of the Employment Act.

Court orders

1.Award to the Claimant of Kshs. 33,600 being leave pay for eight years
2.Costs of the case awarded to the Claimant
3.Interest on the award at court rates from the date of the award until payment in full

Authorities

Legislation

Employment Act, 2007Section 9
Employment Act, 2007Section 10(7)
Employment Act, 2007Section 35(5)

Cases cited (2)

James Chutha Gathere Vs Nation Media Group Limited
[2013] eKLR
Beatrice Wayeko (suing as Administratrix of the Estate of Oscar Smith Njinuli) Vs Cellulant Kenya Limited
[2014] eKLR

Jurisdiction invoked: Original jurisdiction under the Employment Act, 2007 (Industrial Court)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Fred Masambaka v Babs Security Services [2014] KEELRC 1181 (KLR)", Case Analysis (2014). Cause No 1482 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1181/eng@2014-07-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.